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Constitution Bench headed by Chief Justice Dipak Misra says adultery can be a ground for divorce but can’t be held a criminal offence

In a landmark verdict, a Constitution Bench of the Supreme Court, on Thursday (September 27), held the colonial era adultery law – Section 497 of the Indian Penal Code – to be “absolutely manifestly arbitrary” and said that a law that adversely affects the dignity and individuality of a woman must “invite the wrath of the Constitution”.

The Constitution Bench headed by Chief Justice Dipak Misra was delivering its verdict on a bunch of petitions that had sought the court’s directions on whether Section 497 that treats a married woman as a commodity owned by her husband violates the constitutional concepts of gender equality and sensitivity.

During the course of the hearing in the case, Chief Justice Misra had observed that adultery did not even qualify as a criminal offence and that sending a person to prison for five years for adultery does not appeal to common sense. Additionally, he had observed that adultery can at best be seen as a civil offence and be a ground for adjudicating marital disputes like pleas for granting divorce.

It is largely this opinion that the Constitution Bench proceeded with while delivering its verdict in the case.

It must be recalled that the Centre had urged the court during proceedings in the case to let adultery stay as a criminal offence in the statute books. The Centre’s argument was based on a patriarchal premise that making adultery a criminal offence ensured that the sanctity of a marriage is preserved.

What is the Adultery Law?

Section 497 gives a husband the exclusive right to prosecute his wife’s lover. A similar right is not conferred on a wife to prosecute the woman with whom her husband may have committed adultery. Secondly, the provision does not confer any right on the wife to prosecute her husband for adultery. The law also does not take into account cases where the husband has sexual relations with an unmarried woman.

                                                                                                                     —India Legal Bureau


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